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1
Content overview
Chapter 14 Attention to Provisions and Legal Fiction
1. Pay attention to the concept and characteristics of the provisions
The provisions of attention are those that remind judicial personnel to pay attention to on the premise that the basic provisions of the Criminal Law have been made, so as to avoid judicial personnel ignoring them. The attention provisions have the following two basic characteristics: first, the setting of the provisions does not change the content of the basic provisions, but only reiterates the content of the relevant provisions; Even if the precautions are not set or deleted, there is a corresponding basis for the application of the law (handled in accordance with the basic provisions). Second, it should be noted that the provisions are only indicative in nature, and the content of their expression is exactly the same as the content of the basic provisions, so it will not lead to the punishment of acts that do not conform to the relevant basic provisions as the basic provisions.
II. The Concept and Characteristics of Legal Fiction
Legal fiction (or statutory fiction) is characterized by the fact that otherwise disparate acts are treated as the same act (including conduct that would otherwise not comply with a certain provision). "Jurisprudence is the deliberate treatment of those who know to be different...... Legal fictions are usually intended to provide for a particular constituent element (T1) and apply to another constituent element (T2). In other words, in the case of legal fiction, the legislator still assigns the same legal effect to T2 as T1 for some purpose, even though he knows that T2 and T1 are not identical in fact, and thus instructs the person who applies the law to treat T2 as an example of T1 and to apply the legal provisions of T1 to T2. For example, article 269 of the Criminal Law stipulates: "Whoever commits the crime of theft, fraud or robbery, and uses violence or threatens violence on the spot in order to conceal stolen goods, resist arrest or destroy criminal evidence, shall be convicted and punished in accordance with the provisions of Article 263 of this Law." This is a legal fiction, because the act T2 provided for in this article does not originally meet the constitutive elements (T1) of Article 263 (relevant provisions) of the Criminal Code, but Article 269 gives the same legal effect to the act (T2) as the crime of robbery (T1); In the absence of article 269, the above-mentioned acts cannot be punished as robbery, but can only be found to be theft, fraud and robbery in the previous stage, and intentional homicide or intentional injury in the latter stage, depending on the nature and circumstances, or only as sentencing circumstances for the previous crime.
3. Distinguishing meanings and methods
(1) Distinguish meanings
The significance of distinguishing between the precautionary provision and the legal fiction is as follows:
(1) Clarify whether the provision amends or supplements the relevant basic provisions, whether it leads to the equating of different acts, and whether a certain provision is regarded as a legal fiction or a cautionary provision, which will lead to different conditions for application, and thus form different conclusions. For example, the first paragraph of Article 247 of the Criminal Law provides for the crimes of extorting confessions by torture and obtaining evidence by violence; The latter stipulates, "Where a person is injured or killed, he shall be convicted and given a heavier punishment in accordance with the provisions of Articles 14 and 232 of this Law." "If this provision is considered to be a precautionary provision, then the conditions for conviction and punishment of the crime of intentional homicide for the act of extorting confessions by torture or obtaining evidence by violence require that the perpetrator subjectively have the intent to kill in addition to the death of the person (as discussed later, this view is not in favor of this book). If it is considered that this provision is a legal fiction, then as long as the act of extorting confessions by torture or violently collecting evidence causes death, regardless of whether the perpetrator subjectively has the intent to kill, it must be found to be the crime of intentional homicide.
(2) note that the content of the provisions is "taken for granted" and can therefore be "generalized"; However, the content of the legal fiction is not "taken for granted", but the legislator assigns the legal effect of the provision to the circumstances (acts) that do not conform to a certain provision for special reasons, so the content of the legal fiction cannot be "generalized".
(3) The provisions of attention shall be interpreted in accordance with the basic provisions; In the case of a legal fiction, it shall be interpreted in accordance with the objective meaning of the terms used in the fiction. For example, if paragraph 267 of the Criminal Law is considered to be a precautionary provision, then "robbery with a murder weapon" can only be interpreted in accordance with the constitutive elements of the crime of robbery under Article 263 of the Criminal Law (e.g., requiring the use of a murder weapon for violence; or show the coercion of the murder weapon);
(2) Differentiation methods
(1) Is there a need for a cautionary provision? If it is necessary to make a precautionary provision, it may be a precautionary provision; If there is no need for a precautionary provision at all, the provision may be a legal fiction.
(2) Is there a reason for making a legal fiction? If there is no fictitious reason, it should be interpreted as a precautionary provision; Otherwise, it should be interpreted as a legal fiction.
(3) Is the content of a clause the same as the content of the basic clause? If they are the same, they should in principle be interpreted as a precautionary provision; Otherwise, there is the possibility of interpretation as a legal fiction.
(4) When interpreted as a legal fiction, is there a major difference between the acts provided for in it and the criminal acts provided for in the basic provisions in terms of infringement of legal interests? Although legal fiction is to assign the same legal effect to two different acts, the reason why it can be made is that there is no obvious difference between the two acts in terms of infringement of legal interests. For example, article 300, paragraph 3 of the Penal Code, which is significantly different from the offence of rape, is a violation of the legal order. Therefore, it is appropriate to interpret the above-mentioned provisions as a cautionary provision, that is, the act of organizing and using sects, cults, or superstitions to commit adultery with women can only be convicted and punished as the crime of rape if it fully meets the requirements of the crime of rape.
(5) Does the clause have special content? Note that the provisions are often only indicative in nature, or have specific content but do not add special content to the basic provisions; The legal fiction adds a special content.
In short, it is necessary to accurately distinguish between the attention provisions in the special provisions of the Criminal Law and the legal fiction through various interpretation methods such as systematic interpretation and teleological interpretation.
IV. Analysis of Some Disputed Provisions
It is doubtful whether the provisions of some articles are precautionary provisions or legal fictions. The following is an analysis of some of the provisions.
(1) Article 238, paragraph 2 of the Criminal Code
Paragraph 1 of Article 238 of the Criminal Law stipulates the basic charges for the crime of illegal detention and its statutory penalties, and paragraph 2 of the same article stipulates: "Whoever commits the crime referred to in the preceding paragraph and causes serious injury shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and where death is caused, the sentence is to be 10 or more years imprisonment. Where violence is used to cause injury or death, it is to be convicted and punished in accordance with the provisions of articles 234 and 232 of this Law. "Causing serious injury and causing death in the preceding paragraph are aggravated crimes as a result of the crime of unlawful detention, and it is not required that the perpetrator have the intention to seriously injure or kill others, as long as there is a foreseeable possibility (negligence). The provisions of the latter paragraph (the crime of intentional injury in the case of the use of violence causing injury and the crime of intentional homicide in the case of the use of violence causing death) are legal fictions, and the term "violence" here should be limited to violence beyond the scope of unlawful detention; The content of the fiction is to make the act of intentional injury and intentional homicide that does not have the intent to injure or kill, but objectively causes a person to be injured or killed.
(2) Article 241, paragraph 5 of the Criminal Code
Article 241 of the Criminal Law stipulates the crime of buying abducted and trafficked women and children, and paragraph 5 of this article stipulates: "Whoever buys and sells trafficked women or children shall be convicted and punished in accordance with the provisions of Article 240 of this Law." Obviously, this provision is actually based on the fact that the perpetrator has committed two acts and constituted two crimes respectively, and "conviction and punishment shall be in accordance with the provisions of the heavier punishment". "Purchase" refers to a purchase that does not have (or is not ascertained) for the purpose of selling. In such cases, the perpetrator was guilty of two separate offences for each of his acts. If the theory of including one crime is not recognized, then the two acts should have been punished concurrently, and this paragraph makes several crimes a single crime, which is a legal fiction. However, if the concept of including one crime is taken as a theory of general application in criminal law, then in cases such as this where two acts only infringe on the same legal interest, the evaluation of the punishment of one crime should have been included, and the provisions of this paragraph should be a precautionary provision.
(3) Articles 247 and 248 of the Criminal Law
Article 247 of the Criminal Law stipulates: "Judicial personnel who extort confessions by torture or use violence to extract testimony from witnesses against a criminal suspect or defendant shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention." and where a person is injured or disabled, a heavier punishment is to be given in accordance with the provisions of articles 234 and 232 of this Law." Paragraph 1 of Article 248 of the Criminal Law stipulates: "Where a person in custody of a prison, detention center, detention center, or other regulatory agency beats or physically punishes or abuses a person under supervision, and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; where the circumstances are especially serious, the sentence is between three and ten years imprisonment. and where a person is injured or killed, it is to be convicted and given a heavier punishment in accordance with the provisions of articles 234 and 232 of this Law. "The latter part of these two articles is a legal fiction rather than a notice provision. Therefore, as long as the act of extorting confessions by torture, the act of using violence to obtain evidence, or the abuse of a person in custody results in disability or death, even if there is no intent to harm or intent to kill, it should be found to be the crime of intentional injury or intentional homicide (on the premise that there is a foreseeable possibility). In detail, in the case of causing disability, even if the perpetrator did not have the intention to harm, it must be found to be the crime of intentional injury; In the case of causing death, even if the perpetrator did not have the intent to kill, or only had the intent to injure, it must be found to be the crime of intentional homicide.
(4) Article 267, paragraph 2 of the Criminal Code
Paragraph 2 of Article 267 of the Criminal Law stipulates: "Whoever carries a murder weapon for robbery shall be convicted and punished in accordance with the provisions of Article 263 of this Law." This provision is a legal fiction and not a cautionary provision. That is, as long as the perpetrator carries a murder weapon to rob, it is punished as the crime of robbery, and the perpetrator is not required to use violence, coercion or other methods. The reasons are as follows: (1) Although the Criminal Law stipulates both the crime of robbery and the crime of robbery, there is no special controversy in theory about the difference between the two crimes, and there is no phenomenon that is difficult to distinguish in practice, so there is no need for the Criminal Law to set up a special provision for attention. (2) Second, robbery with a murder weapon did not meet the constitutive elements of the crime of robbery under Article 263 of the Criminal Law. In the absence of the provisions of paragraph 2 of article 267 of the Criminal Code, the judicial authorities can only find the act of snatching with a murder weapon as the crime of robbery. In such a case, the fact that the Criminal Law still provides for the crime of robbery with a murder weapon indicates that this paragraph is a legal fiction rather than a precautionary provision. (3) The reason why this provision is established is that although the act of snatching is a sudden kind of physical violence, the victim will discover the fact of being robbed on the spot, and under normal circumstances, the perpetrator will be required to return his property; However, the perpetrator's act of snatching with a murder weapon objectively created convenient conditions for himself to resist arrest and harbor stolen goods, and coupled with the perpetrator's subjective awareness of using the murder weapon, the probability of using the murder weapon is very high, resulting in no substantial difference between the degree of harm of his conduct and the crime of robbery. (4) This kind of provision can solve some difficult problems. For example, if the perpetrator carries a murder weapon for the purpose of robbery, but only commits the act of robbery at the scene, the following questions arise as to whether it is only recognized as the crime of robbery, or whether it is determined to be a combination of the crime of robbery (preparation) and the crime of robbery, including one crime or several crimes? The criminal law of the mainland stipulates that the act of robbery with a murder weapon is punished as the crime of robbery, which can solve the above problems.
(5) Article 292, paragraph 2 of the Criminal Code
Article 292 of the Criminal Law stipulates the crime of assembling a crowd to fight, and its second paragraph stipulates: "Whoever assembles a crowd to fight, causing serious injury or death, shall be convicted and punished in accordance with the provisions of Articles 234 and 232 of this Law." This paragraph is a legal fiction for the following reasons: (1) The term "fighting" obviously does not include the circumstances of homicide (whether it can include the intent to seriously injure is also worth studying), and when people use fighting to describe a state of affairs, it obviously does not mean killing each other. In other words, since it is a "fight", the perpetrator may not subjectively have the intent to kill, and objectively it may not be an act of homicide; If the perpetrator had the intent to kill and act, article 232 of the Penal Code should be directly applied, and article 292 of the Penal Code does not have the need to create paragraph 2 at all. (2) The language of paragraph 2 of Article 292 of the Criminal Law is clearly a legal fiction, that is, as long as a crowd fights and causes serious injury or death, it should be found to be the crime of intentional injury or intentional homicide. The infringement of legal interests resulting in serious injury or death by assembling a crowd to fight is the same as the infringement of legal interests in the crimes of intentional injury and intentional homicide, so there is a substantive basis for interpreting it as a legal fiction. (3) Article 292, Paragraph 1 of the Criminal Law does not stipulate aggravating circumstances resulting in serious injury or death in a crowd fight. If this paragraph is considered to be a precautionary provision, an unfair "gap" is created, and the reason why article 292, paragraph 1, of the Criminal Code does not provide for serious injury or death in the case of aggravating circumstances is that there is a fictitious provision in paragraph 2.
(6) Article 394 of the Criminal Code
Article 394 of the Criminal Law stipulates: "Where a state functionary accepts a gift in the course of domestic official activities or foreign exchanges, and fails to do so in accordance with state regulations, and the amount is relatively large, he shall be convicted and punished in accordance with the provisions of Articles 382 and 383 of this Law." Since a State functionary "accepts gifts" in the course of domestic official activities or foreign exchanges, it shows that the act itself is not illegal. If a State functionary takes advantage of his position to solicit property from another person or illegally accepts property from another person for the benefit of another person, he shall be punished for the crime of accepting bribes directly in accordance with article 385 of the Criminal Code, and it is absolutely unnecessary to apply article 394 of the Criminal Code. Therefore, article 394 of the Criminal Law does not confer legal effect on the crime of embezzlement an act that originally met the constitutive elements of the crime of accepting bribes, and therefore is not a legal fiction.
5. Responses to relevant questions
Response to the Judgment on Legal Fiction:
(1) One of the most important reasons for criticizing legal fiction is that legal fiction violates the principle of unity of subjectivity and objectivity. For example, where a confession is extorted by torture resulting in death, it should also be found to be intentional homicide when there is no intent to kill.
This book argues that the so-called principle of unity of subjectivity and objectivity does not mean that the subjectivity and objectivity of the offender must be completely identical. In fact, in the case of an attempt to commit a crime or an erroneous understanding of facts, the subjective content is inconsistent with the objective facts, but this does not necessarily affect the establishment of the crime. For example, in the case of attempted intentional homicide, the result of death that the perpetrator hoped for did not occur, subjective and objective are not consistent, but this does not affect the establishment of the crime of intentional homicide. The principle of the unity of subjectivity and objectivity on the mainland should actually be understood as the principle of responsibility. That is, the perpetrator can only be held accountable if he or she is reprehensible (possibility of reproach) for his or her illegal conduct that meets the objective constitutive elements. In other words, the perpetrator can only be held liable when the judicial authority can attribute the illegal act that caused the harmful result and meets the constitutive elements to the "work" of the perpetrator. However, this does not mean that the perpetrator must be aware of the legal nature and significance of his act in any crime, as long as the perpetrator is aware of the objective facts that constitute the elements stipulated in the law, it is clear that he is responsible for the objective facts. For example, when the objective constitutive element is that the perpetrator commits the crime of theft, fraud, or robbery, and uses violence or threatens violence on the spot, he subjectively has the intention to conceal stolen goods, resist arrest, or destroy evidence, and has the corresponding responsibility. When the Criminal Law stipulates that the above-mentioned acts shall be punished as robbery, as long as the perpetrator meets the above conditions, he shall be punished as robbery. Although the above-mentioned perpetrators subjectively did not have the intent to "rob", their conduct was found to be the crime of robbery, and did not violate the so-called principle of unity of subjectivity and objectivity. The provisions of the legal fiction are originally different from the fictional crime, and it is a matter of course that they do not fully possess the subjective and objective elements of the simulated crime, rather than violating the principle of unity of subjectivity and objectivity.
(2) Some scholars believe that the legal fiction deviates from the function of the criminal law, violates the principle of legality of crimes, and makes the crime constituted a void. However, this book argues that none of these criticisms can be sustained. First of all, the function of the criminal law is to protect legal interests and protect human rights, and the legal fiction in the specific provisions of the criminal law is premised on the sameness or similarity of the infringement of legal interests by the two acts. This is illustrated by the fact that the sub-provisions of the Criminal Law only make robbery with a murder weapon a crime robbery, but not a crime of robbery with a murder weapon. Second, the establishment of legal fiction does not violate the formal aspect of the principle of legality of crimes, nor does it violate the substantive aspects of the principle of legality of crimes. On the one hand, legal fiction does not violate the requirement of clarity; On the other hand, legal fiction does not prescribe as an offence conduct that does not merit criminal punishment. In addition, since the legal fiction is premised on the sameness or similarity of the infringement of legal interests by the two acts, it does not violate the principle of balance between crime and punishment. Finally, legal fiction is a special provision that cannot be "generalized". In other words, the legal fiction only treats the specific differences as the same, and does not change the composition of the offence under the basic provisions.
The path to the perfection of the criminal law should be that after the legislature formulates the law, the interpreter interprets the law according to the concept of justice and the written expression, and in connection with the social reality; In many cases, in order to achieve social justice, interpreters have to interpret legal terms that differ from their literal meanings (the interpretation of criminal law must of course be consistent with the principle of legality); After a period of time, the legislature will adopt the opinions of the interpreters and revise the wording of the law to use wording that better realizes the idea of justice; Then, the interpreter interprets the law according to the concept of justice and the literal expression, and connects it with social reality. Repeat the process above. This process repeats itself, thus perfecting the statutory law and enabling the judiciary to continuously pursue and achieve justice. As the saying goes, "Interpretation follows the codification, and revision follows interpretation, and the work is endless." "Therefore, do not think that only a critical article of law is conducive to the improvement of written criminal law, and in fact, the interpretation of criminal law itself is equally or even more conducive to the improvement of written criminal law. Criminal law theory should focus on the interpretation of criminal law rather than on the critique of criminal law.
2
Summary of impressions
In this chapter, Professor Zhang Mingkai first discussed the concepts of attention regulations and legal fiction, as well as the distinction between meaning and method. Note that the provision plays the role of a "reminder" in criminal law. It was established on the premise that the basic provisions of the Criminal Code have been made, and in order to alert judicial personnel to the attention so as not to ignore them. Such a provision does not change the content of the basic provisions, but only reiterates the content of the relevant provisions. Among them, the provisions on "knowingly" in the sub-provisions all belong to the category of precautions. Even if there is no provision on "knowingly" in the sub-provisions, the perpetrator of an intentional crime should be required to be aware of the objective elements of the crime in accordance with the provisions on intent in the General Provisions. This requires that the perpetrator must have knowledge of the facts that are objectively constituent elements of the crime, otherwise the intent will be prevented. The reason why legal fiction is set up is based on two reasons: first, it is based on the consideration of legal economy to avoid repetition. Second, on substantive grounds, the infringement of legal interests by these two acts is the same or similar. For example, robbery with a murder weapon and robbery are similar and identical in terms of infringement of legal interests.
As for the criteria for distinguishing between the two, Professor Zhang Mingkai proposed that it should be distinguished and determined from five aspects: "whether there is a necessity to establish a precautionary provision", "whether there is a reason for making a legal fiction", "whether the content of a clause is the same as the content of the basic clause", "whether there is a major difference in the infringement of legal interests", and "whether the clause has special content". But there are also scholars who have put forward critical opinions. Although the precautions are usually only established when necessary, due to the low level of legislation in the mainland at the present stage, there are still a large number of "redundant provisions" in the sub-provisions of the Criminal Law. Therefore, it is indeed difficult to establish necessity as a distinguishing criterion. Second, taking the reasons for making special provisions and the existence or absence of major differences in the infringement of legal interests as the criterion, in many cases, it is indeed "the benevolent sees the benevolent, and the wise see the wise", and it is difficult to convince people. In addition, it is suspected that there is a circular argument to distinguish whether the content is the same as the basic provisions, and whether there are additional provisions with special contents. It is still necessary to make a comprehensive judgment by using methods such as systematic interpretation and teleological interpretation, so as to seek a balanced and appropriate substantive interpretation conclusion between the protection of human rights and the protection of legal interests.
Secondly, Professor Zhang Mingkai made a specific analysis and argumentation of the controversial provisions in the Criminal Law, for example, he concluded that Article 267, Paragraph 2 of the Criminal Law is a legal fiction rather than a notice provision, that is, as long as the perpetrator carries a murder weapon to snatch and rob, It is punishable as robbery, and the perpetrator is not required to use violence, coercion or other means.
Finally, Professor Zhang Mingkai responded to some criticisms of legal fiction, he believed that legal fiction is inevitable, and he attributed the deep-seated reason of this phenomenon to people's habit of criticizing criminal law, rather than trying to interpret criminal law, and emphasized and declared the importance of substantive interpretation theory and criminal law hermeneutics, which gave me great inspiration, in my future study and work, we should pay attention to the interpretation of criminal law, rather than criticism of criminal law.
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Producer: Zhang Yongjiang
Author: Xiong Yuanyuan, a 2023 master's student majoring in criminal law at the Law School of Xiangtan University
Editor: Xiong Yuanyuan
Editor-in-charge: Gong Yi
Review: Cheng Bo
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